Judgment :- D. MURUGESAN, J. The Management of Tamil Nadu Cements Corporation Limited has filed this writ petition challenging the award of the Labour Court, Madurai, dated January 7, 1994, passed in I.D. No. 474 of 1991. The first respondent-union raised an industrial dispute under Section 2(k) of the Industrial Disputes Act (hereinafter called as "the Act") before the Labour Officer, Virudhunagar, challenging the transfer of one K. Bhima Raja from the post of senior telephone operator to the post of clerk in the accounts department. The conciliation ended in failure and the same was referred for adjudication by the Labour Court, Madurai, by the Government in G.O. (D) No. 784, dated August 1, 1981. The Labour Court decided the dispute holding that the appropriate grade of K. S. Bhima Raja is to be determined from July 29, 1990 and that he should be given the post of accountant with all attendant benefits. Challenging the said award, the present writ petition has been filed by the petitioner. It is the case of the petitioner that the said K. S. Bhima Raja was appointed on August 24, 1967, as maistry grade II on a consolidated pay of Rs. 800 per mensem. His educational qualification was that he completed SSLC. He was posted as machinery attendant in "D" grade as per wage board scales with effect from January 17, 1970. Thereafter, he was posted to telephone exchange of the unit office with effect from June 18, 1971, and he was designated as telephone operator grade I with effect from October 20, 1971. Thereafter, he was promoted to staff category and fitted into TC grade I of Cement Wage Board Award with the same designation as telephone operator with effect from July 1, 1978. Thereafter, he was promoted as telephone operator grade II with effect from October 1, 1981, in the time scale of Rs. 315-11-425-EB-12-545. He was again promoted on February 2, 1988, as senior telephone operator grade III though as per the award of the Cement Wage Board, there are only two grades for the post of telephone operators. His basic pay was fixed at Rs. 820 per mensem in the scale of Rs. 600-20-1440. In his representation dated April 10, 1989, he made a request that he may be considered for higher grades with monetary benefits taking into account of his length of service. His basic pay was fixed at Rs. 820 per mensem in the scale of Rs. 600-20-1440. In his representation dated April 10, 1989, he made a request that he may be considered for higher grades with monetary benefits taking into account of his length of service. Since, there was no further avenue of promotion from senior telephone operator grade III and also taking into account that he developed some vested interest in the department and misused his post for personal gains, the management transferred him as clerk in the Accounts Section by order dated July 29, 1990, and he joined duty on August 2, 1990. The said transfer was effected according to the certified standing orders of the petitioner-company and also the settlement dated February 17, 1981. The said transfer was also made duly taking into account the demand made by the said K. S. Bhima Raja for promotion to higher grades. After his transfer, he gave another representation dated August 13, 1990, requesting the management of the petitioner-company to promote him as supervisor or accountant and if it was not possible to retransfer him as senior telephone operator. The first respondent-union submitted a representation on August 28, 1990, to the General Manager of the petitioner company demanding that K. S. Bhima Raja is forced to work as clerk under his juniors and that the order of transfer may be cancelled and he may be retransferred as senior telephone operator or supervisor. Since the said demand was not accepted by the management, the dispute under Section 2(k) of the Act was raised which ended in the award in favour of the said K. S. Bhima Raja. Mr. V. Karthik, learned counsel for the petitioner would challenge the award on two grounds, viz., (1) the dispute that has been raised by the union is not an industrial dispute and it is only an individual dispute as the same was not supported by substantial workmen of the writ petitioner-corporation. In the writ petitioner-corporation there are more than 1, 000 workmen and the dispute is supported only by 25 workmen of the union and hence the same cannot be considered as a dispute which has the support of substantial workmen. In the writ petitioner-corporation there are more than 1, 000 workmen and the dispute is supported only by 25 workmen of the union and hence the same cannot be considered as a dispute which has the support of substantial workmen. For said submission, the learned counsel relied upon the judgments of this Court in Nellai Cotton Mills, Tirunelveli v. Labour Court, Madurai, 1965-I-LLJ-95; as accountant is totally unjustifiable since the said Bhima Raja is not qualified to be appointed in that post. Controverting the above submissions, Mr. N. G. R. Prasad, learned counsel for the first respondent submitted that all that has been agitated before the Labour Court by way of a counter-affidavit was by justifying the transfer on the merits. It was not the case of the petitioner-management before the Labour Court that there were more than 1, 000 workmen out of which, only 25 workmen have supported the dispute. Only in the written arguments submitted by the petitioner-management, strangely a plea was taken that there were 1, 412 workmen out of which, only 25 workmen have supported the dispute which constitutes only 1.76 per cent. of the total workmen and, therefore, the said dispute cannot be considered as a dispute which has the support of the substantial workmen. In the absence of any such pleading in the counter-affidavit, it is not now open to the writ petitioner to contend that the dispute was not supported by substantial workmen. According to the petitioner, the first respondent-union has got 32 workmen and out of 32 workmen, 25 workmen have supported the dispute and therefore the said dispute has to be considered as an industrial dispute. For the said submission the learned counsel relied upon a Division Bench judgment of this Court in Buckingham and Carnatic Company Ltd. v. Its Staff Union, 1959-II-LLJ-781. In regard to the other submissions, learned counsel submitted that the Labour Court exercised its discretion in directing the petitioner to promote the said K. S. Bhima Raja as accountant and pay him the salary. In regard to the other submissions, learned counsel submitted that the Labour Court exercised its discretion in directing the petitioner to promote the said K. S. Bhima Raja as accountant and pay him the salary. Such a discretion exercised by the Labour Court was by duly taking into consideration of the length of service of the said K. S. Bhima Raja and there was no further avenue of promotion after the post of senior telephone operator grade III and also his juniors have been promoted in the clerical cadre up to grade VI and were drawing higher salary than the said Bhima Raja and therefore, it will not be fair on the part of the writ petitioner to transfer the said K. S. Bhima Raja to the post of clerk grade III and ask him to work under his juniors. However, as far as the direction of the Labour Court to promote the said K. S. Bhima Raja to the post of accountant as he has no qualification for such post, learned counsel submitted that the order of the Labour Court should read as to the scale of pay to the post of accountant shall be paid to the said K. S. Bhima Raja and he cannot be promoted as accountant as such. To that extent the award of the Labour Court can be modified by safeguarding the higher scale of pay directed to be paid to the said K. S. Bhima Raja equal to that of the scale of pay of the accountant. In so far as the first contention of learned counsel for the petitioner that the dispute is only an individual dispute and not an industrial dispute and, therefore, the dispute raised under Section 2(k) is not maintainable, it is to be seen that the petitioner has not raised this question in the counter-affidavit filed in I.D. However, an attempt has been made by the petitioner before the Labour Court at the time of filing the written arguments that the industry has got 1, 412 workmen and only 25 workmen have supported the dispute and, therefore, it is only 1.76 per cent, which cannot be considered as a substantial support from the workmen. In the absence of any such pleading that the total number of workmen are 1, 412, the Labour Court is called upon to adjudicate and decide the dispute on the basis of the pleadings and evidence let in on those pleadings. Neither the Labour Court nor this Court is called upon to decide as to the question whether the dispute is an industrial dispute or an individual dispute on the basis of the new plea that has been taken which was not the subject-matter before the Labour Court and the same was not adjudicated upon on merits. It is the stand of the first respondent that the union has got 32 workmen on its roll and out of 32 workmen, 25 workmen have supported the dispute and such a dispute can be considered as having the support of the substantial workmen, hence, the dispute has to be considered as an industrial dispute as it has the substantial support of the workmen of the union. In view of the conclusions arrived by me on facts of the case, the judgments relied upon by learned counsel for the petitioner cannot be taken as advantageous to the petitioner. Accordingly, I reject the said submission of learned counsel for the petitioner. In so far as the second submission of learned counsel for the petitioner that the said Bhima Raja has no qualification to be promoted to the post of accountant, it is to be seen that it is not in dispute that the said K. S. Bhima Raja has put in long number of years of service as he joined the service as maistry grade II on August 24, 1967, and there is no further avenue of promotion to him from the post of senior telephone operator grade III to which post he was promoted on February 2, 1988. Therefore, a request was made by the said Bhima Raja followed by a dispute raised by the union for giving promotion to the said Bhima Raja on the further ground also that his juniors who were appointed as clerks were promoted up to the cadre of grade VI and are drawing higher salary. Therefore, a request was made by the said Bhima Raja followed by a dispute raised by the union for giving promotion to the said Bhima Raja on the further ground also that his juniors who were appointed as clerks were promoted up to the cadre of grade VI and are drawing higher salary. The submission of learned counsel for the petitioner is that since the union has not challenged the transfer, the Labour Court ought not to have gone into the question as to whether the transfer was bona fide or made with mala fide intention and consequently ought not to have directed the writ petitioner to promote the said K. S. Bhima Raja to the post of accountant. The said submission is unacceptable since the Labour Court while considering the question of transfer of the said Bhima Raja from the post of senior telephone operator grade III to the post of clerk grade III had to necessarily give a finding as to whether such transfer was bona fide or mala fide. Only for the purpose of considering as to what relief the said Bhima Raja was entitled to, on the facts, the Labour Court came to the conclusion that the transfer was mala fide since the said Bhima Raja was transferred to a post of clerk grade III when his juniors in the clerical cadre have been promoted up to grade VI and are drawing higher salary. Admittedly, when there was no avenue of promotion to the said K. S. Bhima Raja from the post of senior telephone operator grade III, the discretion exercised by the Labour Court in directing the writ petitioner to promote the said K. S. Bhima Raja to the post of accountant and pay him the salary and other attendant benefits cannot be termed as either erroneous or unreasonable or perverse. However, as contended by learned counsel for the petitioner, the said Bhima Raja is not qualified to hold the post of accountant and, therefore, there cannot be a direction to the petitioner to promote the said Bhima Raja to the post of accountant. The said position has also been not disputed by learned counsel for the first respondent-union. However, as contended by learned counsel for the petitioner, the said Bhima Raja is not qualified to hold the post of accountant and, therefore, there cannot be a direction to the petitioner to promote the said Bhima Raja to the post of accountant. The said position has also been not disputed by learned counsel for the first respondent-union. All that learned counsel for the first respondent submitted was that the award of the Labour Court should be construed as one directing the writ petitioner to pay the salary as applicable to the post of accountant to the said Bhima Raja with all benefits attached to the said post more particularly, taking into consideration the length of service and there was no further avenue of promotion for the said Bhima Raja from the post of senior telephone operator grade III and the direction issued by the Labour Court can be modified as a direction to the writ petitioner to place the said Bhima Raja in the scale of pay applicable to the post of accountant and pay him all other benefits attached to the said post instead of actually promoting him to the post of accountant. In this context a judgment of the Supreme Court in Workmen of Williamson Magor and Co. Ltd. v. Williamson Magor & Co. Ltd., 1982-I-LLJ-33 may be usefully referred to wherein the Supreme Court has held that the Industrial Tribunal shall adjudicate the industrial dispute between the management and workmen, settle the same, and pass effective awards in such a way that industrial peace between the employers and employees may be maintained so that there can be more production to benefit all concerned. The Supreme Court has emphasized the fact that the Industrial Tribunals are entitled to pass effective awards in order to maintain industrial peace between the employers and employees. The discretion exercised by the Labour Court can be considered as one passed in conformity with the principles laid down by the Supreme Court. Hence, I do not find the award of the Labour Court in directing the petitioner to pay wages to the said K. S. Bhima Raja equal to the scale of pay applicable to the post of accountant either perverse or unreasonable. Therefore, the directions contained in the award are modified by this order as above to meet the ends of justice. With the above modification, the writ petition is ordered accordingly. Therefore, the directions contained in the award are modified by this order as above to meet the ends of justice. With the above modification, the writ petition is ordered accordingly. No costs.